Massachusetts

Reporter's Privilege Compendium

I. Introduction: History & Background

Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter's privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters' confidential sources in some circumstances.

II. Authority for and source of the right

A. Shield law statute

Although the issue has been brought before the legislature, as of the time of this writing, Massachusetts does not have an express shield statute.

In 1985, the Supreme Judicial Court dismissed a petition by the Governor's Press Shield Law Task Force for the adoption of rules establishing a qualified privilege protecting newsgatherers from compelled disclosure of confidential sources and unpublished information. See Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985). The court asserted that a common law approach to this area of law would be better than rulemaking by the court. Id. The court's decision not to adopt privilege rules was motivated in part by the fact that the various media entities petitioning for a privilege could not agree on the exact contours of such a proposed privilege. Id.

C. Federal constitutional provision

There is no basis for a reporter’s privilege in the federal constitution. The Supreme Court has stated that it “[does] not believe that the First Amendment creates at the level of constitutional doctrine an exception [for reporters] to the ‘long-standing principle that “the public . . . has a right to every man's evidence.’” In Re Roche, 411 N.E.2d 466, 473 (Mass. 1980), quoting from Branzburg v. Hayes, 408 U.S. 665, 688 (1972).

D. Other sources

The common law is the main source for a reporter's privilege in Massachusetts. Courts have recognized, through case law, that a balancing of interests is required when a journalist resists complying with a subpoena. See Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985) (asserting that a common law approach to this area of law would be better than rulemaking by the court). See also In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); In re Roche, 411 N.E.2d 466 (Mass. 1980); Ayash v. Dana Farber Cancer Inst, 822 N.E.2d 667, 696 (Mass. 2005).

Rules of the Court: In 1985, the Supreme Judicial Court dismissed a petition by the Governor's Press Shield Law Task Force for the adoption of rules establishing a qualified privilege protecting newsgatherers from compelled disclosure of confidential sources and unpublished information. See Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985). The court asserted that a common law approach to this area of law would be better than rulemaking by the court. Id. The court's decision not to adopt privilege rules was motivated in part by the fact that the various media entities petitioning for a privilege could not agree on the exact contours of such a proposed privilege. Id.

III. Scope of protection

A. Generally

The protection the Massachusetts's reporter's privilege affords is uncertain. The privilege derives from a judge's obligation to consider "the effect of compelled disclosure on values underlying the First Amendment." Petition for Promulgation of Rules, 479 N.E.2d 154, 158 (1985). A judge has the authority to prevent harassment and needless disclosure of confidential relationships but may choose whether or not to exercise that authority at his or her discretion. Petition for Promulgation of Rules, 479 N.E.2d 154, 158 (1985). This makes it difficult to predict the outcome in a given case because the outcome will depend both on the case's specific facts and the views of the presiding judge. The privilege is qualified and applies to protect a reporter's sources when it is determined that the reporter's interests in confidentiality outweigh countervailing interests in obtaining the evidence sought.

2. Criminal

The protection of the privilege is not dependent on whether the reporter has been subpoenaed in a civil or criminal case. Either way, application of the privilege depends on a balancing of the interests. For criminal cases in which the privilege has been discussed, see, e.g., Commonwealth v. Bui, 645 N.E.2d 689 (Mass. 1995); Commonwealth v. Corsetti, 438 N.E.2d 805 (Mass. 1982); Massachusetts v. McDonald, 6 Med. L. Rep. 2230 (Mass. Super. Ct. Nov. 12, 1980).

D. Information and/or identity of source

E. Confidential and/or nonconfidential information

The privilege provides more protection for confidential information than non-confidential information. See Russo v. Geagan, 35 Fed. R. Serv.2d 1403 (D. Mass. 1983) (federal magistrate judge upheld subpoena for unaired video of a protest where the production would not require the revelation of any confidential source. Because the rally was visible to the public at large, none of the information required was obtained under a pledge of confidentiality.). See alsoAstra USA, Inc. v. Bildman, 13 Mass. L. Rep. 300 (Mass. 2001).

F. Published and/or non-published material

There does not appear to be any case law discussing whether material that has been published or broadcast is covered by the reporter's privilege. Unpublished materials may be covered when a balancing of interests favors nondisclosure. See Astra USA, Inc. v. Bildman, 13 Mass. L. Rep. (Mass. 2001) (A reporter spent six months investigating claims of sexual harassment in a company. The court did not afford any special protection to documents exchanged between the reporter and the company that were not published as part of the resulting article.). See also Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985).

G. Reporter's personal observations

In In re Pappas, 266 N.E.2d 297 (Mass. 1971), the court rejected a claim that the First Amendment entitled a reporter to refuse to appear before a grand jury investigating criminal activity of which the reporter had personal knowledge. See also In re Roche, 411 N.E.2d 466 (Mass. 1980). "Requiring a newsman to testify about facts of his knowledge does not prevent their publication or circulation of information. Any effect on the free dissemination of news is indirect, theoretical, and uncertain, and relates at most to the future gathering of news." In re Pappas, 266 N.E.2d at 302.

H. Media as a party

The balancing required by the privilege is the same for cases where the media is a party and where it is not. Nevertheless, the balance is likely to tip towards disclosure where the media is a party and the evidence sought goes to the heart of the case. See Dow Jones & Co. v. Superior Court, 303 N.E.2d 847 (Mass. 1973)(the same common law balancing test applied when a news journal, which was party to a libel suit, claimed reporter's privilege to protect the identity of a confidential source.); Ayash v. Dana-Farber Institute, 443 Mass. 367 (Mass. 2005)( Defendant reporter and newspaper were ordered to reveal the identity of a confidential source, and the court found that the plaintiff's interest in obtaining the source's identity outweighed any potential damage to the free flow of information.).

I. Defamation actions

The same balancing is required to determine whether a reporter's sources are protected in a libel case as in other cases. In a libel case in which the media is a party, disclosure will most likely be compelled. See Dow Jones & Co. v. Superior Court, 303 N.E.2d 847 (Mass. 1973); Ayash v. Dana-Farber Institute, 443 Mass. 367 (Mass. 2005).

However, this is not always the case. See Wojcik v. Boston Herald, 803 N.E.2d 1261 (Mass. App. 2003). In Wojcik, Court did not compel disclosure of the identities of confidential sources in a libel action where "the identities of the sources [were] largely irrelevant to [the plaintiff's] defamation claim." Wojcik, 803 N.E.2d at 1266.

IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Courts have not laid out a definition of who is a "reporter" for purposes of the privilege.

In Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992), the court held that an investment analyst who had written a report on a company could invoke the reporter's privilege. The court said:

"Whether or not Roberts [the analyst] is a member of the "organized press" per se, it appears that he is engaged in the dissemination of investigative information to the investing business community. It further appears that the "speech" at issue (the Roberts' article) relates to "matters of public concern" as opposed to "matters of private concern" and, therefore, is accorded higher First Amendment protection ... In short, in this instance, Roberts is entitled to raise the claim of privilege with respect to his confidential source as would any other media reporter."

b. Editor

c. News

Courts have not defined what "news" is, for purposes of the privilege.

However, in Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), the court held that an investment analyst's written report on a company could be the basis of a claim of the reporter's privilege.

d. Photo journalist

e. News organization/medium

Courts have not defined the media, for purposes of the privilege.

However, in Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), the court held that an investment analyst who had written a report on a company, though not a member of the "organized press" per se, could invoke the reporter's privilege.

2. Others, including non-traditional news gatherers

There is no case law on the application of the privilege to non-traditional news gatherers such as authors, freelancers, students, and unpaid news gatherers. However, in Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), the court held that an investment analyst who had written a report on a company, though not a member of the "organized press" per se, could invoke the reporter's privilege. For an argument in favor of expanding the reporter's privilege to non-traditional members of the media, see Mary-Rose Papandrea, Citizen Journalism and the Reporter's Privilege, 91 Minn. L. Rev. 515 (2007).

4. Judicial approval

5. Service of police or other administrative subpoenas

Administrative agencies are bodies within the executive branch that are created by legislative enactment to undertake certain specific tasks. An administrative subpoena is a command from the agency directing an individual to give information to the agency. 38 Mass. Practice § 142. However, the power to issue an administrative subpoena is not inherent to the agency; in Massachusetts, an agency may only issue a subpoena if it is given the power to do so by statute. Mass. Comm. Against Discrimination v. Liberty Mut. Ins. Co., 356 N.E.2d 236, 238 (1976 Mass.). Where a Massachusetts agency is governed by the Massachusetts Administrative Procedure Act, M.G.L.A c. 30A, §12., the subpoena will be served in accordance with the same rules that apply the subpoenas issued by civil courts.

c. Timing

d. Language

e. Additional material

The Reporters Committee for Freedom of the Press often recommends that a copy of "Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media," its biennial survey of the incidence of news media subpoenas, be attached to a motion to quash based on the reporter's privilege.

In cases of criminal contempt, the Massachusetts courts have adopted the Federal courts' interpretation of the analogous federal subpoena rule, Fed. R. Crim. P. 17 (c). "[T]he party moving to subpoena documents to be produced before trial must establish good cause, satisfied by showing '(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application [was] made in good faith and is not intended as a general "fishing expedition."'" Commonwealth v. Lam, No. SJC-09322 (MA 5/13/2005) (MA, 2005), citing United States v. Nixon, 418 U.S. 683, 699-700 (1974).

b. What proof of search does a subpoenaing party need to make?

c. Source is an eyewitness to a crime

3. Balancing of interests

The Massachusetts reporter's privilege requires a judicial balancing of interests in determining whether to quash the subpoena.

This balancing test was first explored in In Re Pappas, 266 N.E.2d 297 (Mass. 1971) . In Pappas, the court evaluated whether "the need for information from the news gatherer as a witness outweighs . . . the possible harm to his ability to obtain new and to the reporting ability of the press." 266 N.E.2d at 300. Petition for Promulgation of Rules, 479 N.E.2d 154, 159 (Mass. 1985) also "recognize[d] the desirability of striking 'the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.'"

4. Subpoena not overbroad or unduly burdensome

A subpoena may be quashed for being "unreasonable or oppressive." Mass. R. Civ. P. 45; Mass. R. Crim. P. 17. The burden of the subpoena is evaluated by balancing the interests of the reporter in keeping sources confidential and the party moving for the subpoena in the identities of the sources.

7. Civil/criminal rules of procedure

8. Other elements

Courts have not provided a definitive list of elements that must be met before the privilege can be overcome. Thus, any and all considerations may be included in the balancing test evaluated by courts faced with claims of privilege.

C. Waiver or limits to testimony

1. Is the privilege waivable?

There is no case law on the issue of waiver, although the Massachusetts Supreme Court opinion in Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985), mentioned waiver as an issue to be resolved by courts in developing the privilege.

C. Testimony vs. affidavits

D. Non-compliance remedies

1. Civil contempt

Reporters in Massachusetts have been held in civil contempt to compel compliance, with the proverbial keys to the cell in their own pockets.

To establish a complaint for civil contempt, the complainant must establish, by preponderance of the evidence,: 1)clear and undoubted disobedience 2) of a clear and unequivocal command. United Factory Outlet, Inc. v. Jay's Stores, Inc., 278 N.E.2d 716 (1972).

In Ayash v. Dana-Farber Cancer Inst., a judge ordered the media defendants to pay $100 per day, with that amount increasing by $100 for each successive week. The Massachusetts Appeals Court vacated that order and remanded so the court could employ the balancing test required for a reporter's privilege claim. 706 N.E.2d 316 (1999). On remand, the trial court determined that the plaintiff's need for the information should prevail. The court found the journalists in civil contempt after they continued to refuse to disclose their sources. Ayash, 443 Mass. 367 (Mass. 2005).

A reporter was also found in civil contempt in In re Roche, 411 N.E.2d 466 (Mass. 1980).

The procedures for bringing a complaint for civil contempt are carefully laid out in Mass. R. Civ. P. 65.3.

b. Jail

Although there is no precedent of reporters being sentenced to jail for civil contempt, there is some precedent of jail time for civil contempt in other contexts. See e.g., Mahoney v. Commonwealth, 612 N.E.2d 1175 (Mass. 1993).

2. Criminal contempt

Reporters in Massachusetts have been adjudged in criminal contempt.

In Commonwealth v. Corsetti, a reporter was held in contempt under Mass. R. Crim. P. 43, which authorizes summary findings of criminal contempt. 438 N.E.2d at 809-10. The court rejected the reporter's argument that Rule 43, which is aimed at punishing for disorderly conduct in the courtroom, did not apply to his claim of privilege. Id.

A reporter was also found in criminal contempt under Rule 43 in Massachusetts v. McDonald, 6 Med. L. Rep. 2230 (Mass. Super. Ct. 1980). There, the court said: "The Court possesses inherent power summarily to investigate and punish those committing acts tending to obstruct the administration of justice." Id. at 2231.

Rule 43 allows punishment in the form of imprisonment up to three months or a fine of $500. Rule 44 of the criminal procedure rules covers criminal contempt procedures for non-summary contempt findings.

3. Other remedies

Massachusetts Rule of Civil Procedure 37(b)(2) lists remedies the court may use when a party fails to comply with a discovery order. They include: ordering that the matters regarding which the order was made be taken to be established; refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, dismissing the action, or rendering a judgment by default against the disobedient party; treating as a contempt of court the failure to obey any orders; and/or requiring the party to pay reasonable expenses, including attorney's fees, caused by the failure. Mass. R. Civ. P. 37(b)(2).

In Ayash v. Dana Farber Cancer Inst., 30 Med. L. Rep. 1825 (Mass. Super. Ct. 2001), the court entered a default judgment against the Boston Globe for failing to comply with a discovery order. The Globe was also found in contempt in that case.

VIII. Appealing

A. Timing

1. Interlocutory appeals

Under Massachusetts Rules of Criminal Procedure 43 and 44, a person adjudged in criminal contempt may only apply to the Massachusetts Appeals Court for relief. For rules related to the timing of an appeal, see Mass. R. App. P. 4, 14; Mass. R. Crim. P. 15.

An adjudication of civil contempt against a nonparty is an appealable final judgment. In re Roche, 411 N.E.2d 466, n. 1 (Mass. 1980).

2. Expedited appeals

Massachusetts does not have an explicit procedure for expediting appeals. Massachusetts Rules of Appellate Procedure Rule 2, entitled "Suspension of the Rules," states: "In the interest of expediting decision, or for other good cause shown, the appellate court or a single justice may ... suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. Such suspension may be on reasonable terms." For more on expedited appeals procedures, see Davalene Cooper, "Possible But Not Likely: Expedited Appeals in Massachusetts," 4 Journal of Appellate Practice and Process 235 (Spring, 2002).

2. Stays pending appeal

In In re Roche, an application was made to Justice Brennan, sitting Circuit Justice, to stay an order by the Massachusetts high court adjudicating a reporter in contempt. Brennan stayed enforcement of the order, pending a petition for cert to the U.S. Supreme Court. In re Roche, 101 S. Ct. 4 (1980).

5. Addressing mootness questions

A case in which a reporter was held in contempt for refusing to testify to the grand jury was dismissed as moot when the grand jury session expired. See Commonwealth v. Corsetti, 438 N.E.2d 805, 810 (Mass. 1982).

6. Relief

IX. Other issues

A. Newsroom searches

The federal Privacy Protection Act (42 U.S.C. 2000aa), which drastically limits searches of newsrooms, has not been used in reported case law in Massachusetts. There are there no similar provisions under state law.